The NSA and Rabbeinu Gershom

The latest NSA-relatedissue in the news has gotten me to thinking about Rabbeinu Gershom the Light of the Exile (Meor HaGolah). It is well-known that one of the takkanot attributed to Rabbeinu Gershom was the prohibition of opening someone else’s mail. I am not going to touch upon the question as to whether this really was a takkanah of Rabbeinu Gershom or not, for this see the sources cited below. At the end of the Responsa of Meir of Rothenberg, ed. Prague, we read “חרם תקנת הקהילות ששם רבינו גרשם מאור הגולה…חרם שלא לראות בכתב חבירו ששולח לחבירו בלא ידיעתו אסור ואם זרקן מותר” (“Herem of the Takkanot of the Communities that were established by Rabbeinu Gershom the Light of the Exile…Herem that one should not look at the writing of his fellow that he sends to another without his knowledge, [it is] forbidden, and if he threw them [out? it is] permitted.”) On the basis of this takkanah it become customary to endorse letters with the acronym ופגי”ן דרגמ”ה=ופורץ גדר ישכנו נחש דרבינו גרשום מאור הגולה (“And he who breaks through a fence, the herem of Rabbeinu Gershom shall attach to him”) or just בחרם רבינו גרשום. There was a disagreement amongst Rabbis as to whether the endorsement was required in order to prevent one of opening the letter (see Shiltei Gibborim to Shevuot 17a and Halachot Ketanot of Yaakov Hagiz, I:173). Hagiz was asked regarding a letter which was endorsed with פגי”ן but was found open in the market-place. Since it was left in the market-place does that mean that one was able to read it? Hagiz opined that while the recipient might not have cared about others reading it, the sender endorsed it and was careful about it so the person who found it, even if they think that something written in the letter might be damaging to them, should rip it up and throw it away without reading it. Another instance when there was suspicision that damaging material or the plans for evil-doing was contained in the letter was discussed by R. Hayyim Falagi (Hikkeke Lev, YD 49). Falagi decided that one was permitted to open the letter, seeing this as a better solution than that of Hagiz.

On the question of the right to privacy in Jewish law Nahum Rakover wrote that,

“The right to privacy, we may well conclude, is in Jewish law a vested right which is protected by injunction, restoration of the status quo and the award of damages, from the civil law aspect. Interferences with the right also has it criminal law character, to be countered by penal sanctions. Generally, in this area, more perhaps than in other areas, two conflicting interests are posted-the right of the individual and the rights of society. The law must strike a fair and just balance between the two.” (Rakover, p. 180)